Ex Parte Konya et al

Board of Patent Appeals and Interferences

Aug 5, 2010

10611871 (B.P.A.I. Aug. 5, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte MINEHIRO KONYA, YUSUKE MIYATA, KEI OKUDA and
TAKASHI YASUMOTO
_____________

Appeal 2009-13057
Application 10/611,871
Technology Center 2600
______________

Before ROBERT E. NAPPI, MARC S. HOFF, and DEBRA K. STEPHENS
Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

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This is a decision on appeal under 35 U.S.C. § 6(b) of the rejection of
claims 7 through 13, 15 through 30, and 32 through 35.
We affirm-in-part.
INVENTION
The invention is directed to a mobile device which can capture and
display images. The device is able to generate and display three dimensional
images. See page 2 and 3 of Appellants’ Specification. Claim 16 is
representative of the invention and reproduced below:
16. Mobile equipment comprising:
a pickup device picking up an image of a subject;
a parallax information portion determining parallax information
of said subject;
a three dimensional image creation portion creating a three
dimensional image by applying said parallax information to said
image; and
a display unit displaying said three dimensional image,
wherein said parallax information portion calculates said
parallax information based on the intensity of light reflected from the
subject and on a distance between human eyes.

.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on appeal
is:
Tao US 5,818,463 Oct. 6, 1998
Aoki US 2002/0054032 May 9, 2002
Taniguchi US 6,940,646 B2 Sep. 6, 2005
Pavlidis US 6,995,762 B1 Feb. 7, 2006

Japanese Patent Application 200267232 (Pub No 2002077944 A), Pub
15.03.02, by Ono Shuji (Fuji Photo Film Co Ltd), all pages (and English
abstract and translation).
REJECTIONS AT ISSUE
The Examiner has rejected claims 16, 17, 21, 24 through 26, and 29
under 35 U.S.C. § 102(a) as being anticipated by Shuji. Answer 3-8.2
The Examiner has rejected claims 7 through 13, 22, 27, and 28 under
35 U.S.C. § 103(a) as being unpatentable over Shuji in view of Aoki.
Answer 8-13.
The Examiner has rejected claims 15 and 30 under 35 U.S.C. § 103(a)
as being unpatentable over Shuji in view of Pavlidis. Answer 13-14.
The Examiner has rejected claims 18 through 20 under 35 U.S.C.
§ 103(a) as being unpatentable over Shuji in view of Taniguchi. Answer 15-
16.

2 Throughout the opinion we refer to the Answer mailed October 2, 2007.
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The Examiner has rejected claims 32 and 35 under 35 U.S.C. § 103(a)
as being unpatentable over Shuji in view of Tao. Answer 16-17.
The Examiner has rejected claims 23, 33, and 34 under 35 U.S.C.
§ 103(a) as being unpatentable over Shuji in view of Aoki and Tao. Answer
17.
ISSUES
Rejection of claims 16, 17, 21, 24 through 26, and 29 under 35 U.S.C.
§ 102(a)
Claim 16
Appellants’ contentions with respect to the rejection of claim 16 under
35 U.S.C. § 102, present us with the issue: has the Examiner erred in
finding that Shuji teaches calculating parallax based upon on the distance
between human eyes?
Claims 17, 21, 24 through 26, and 29
In addition to the issues raised with respect to claim 16, Appellants’
arguments directed to the rejection of independent claims 17 and 29 also
present us with the issue: has the Examiner erred in finding that Shuji
teaches a first and second data processing means?

Rejection of claims 7 through 13, 22, 27, and 28 under 35 U.S.C.
§ 103(a)
Appellants’ arguments have presented us with two issues: has the
Examiner erred in finding that Shuji teaches calculating parallax based upon
on the distance between human eyes, and did the Examiner err in finding
that the skilled artisan would combine the face cutting feature of Akoi with
Shuji’s device?
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Rejection claims 15, and 30 under 35 U.S.C. § 103(a)
Appellants’ arguments, on pages 20 through 22 of the Brief, have
presented us with the issue: has the Examiner erred in finding that Pavlidis
teaches calculating parallax information based upon differences between
brightness between parts of the image?

Rejection of claims 23 and 32 through 35 under 35 U.S.C. § 103(a)
Appellants on pages 22 through 25 of the Brief, have presented one
argument directed to the rejection of claims 32 and 35 over Shuji and Tao,
and of claims 23, 33 and 34 over Shuji and Tao and Aoki. We separately
address Appellants’ arguments as they apply to these rejections in the
analysis section.

ANALYSIS
Rejection of claims 16, 17, 21, 24 through 26, and 29 under 35 U.S.C.
§ 102(a)
Claim 16
Appellants’ arguments have not persuaded us that the Examiner erred
in finding that Shuji teaches calculating parallax based upon on the distance
between human eyes, as recited in claim 16. Appellants argue that
paragraph 0003 of the translated Shuji reference, which is relied upon by the
Examiner, discuses prior art methods and Shuji’s invention. Brief 12-13.
Further, Appellants argue that Shuji’s disclosure, in paragraph 0038 of the
translated Shuji reference, of how the left eye and right eye images are
generated does not include a calculation based upon the distance between
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human eyes. Brief 13-14. Additionally, Appellants argue that Shuji’s
method is more complex than Appellants’ method of determining parallax,
which makes use of the calculated parallax angle α. Brief 14-15. We are
not persuaded by these arguments.
In response to these arguments, the Examiner states that Shuji teaches
using the distance between the human eyes to create binocular vision, citing
paragraph 0003 of the translated Shuji reference.
Further, the Examiner states:
Furthermore, the geometry in the situation of using shifting results in
an angle difference between the left and right viewpoint (left and right
eye viewpoints of the user). There is an angular difference because
the left and right eye viewpoints are slightly offset by a given angle in
order to give the shifting effect in the, images. Basic geometry of the
setup with these two offset viewpoints (where one is shifted relative to
another) requires one to have a distance between the eyes and a
distance to the object being seen by the left and right viewpoint.
Since, Shuji teaches of shifting the viewpoint to given parallax
information, the distance to the object and the distance between the
viewpoints (left and right eyes) have to be considered and used by the
reference in order to achieve correct output results. Otherwise, the
image may look distorted and not have the correct amount of parallax
present (i.e. the images may be shifting too little or too much).

Answer 19. We concur with the Examiner.
While paragraph 0003 is referring to the prior art, it does establish that
to create a binocular image, the images are captured as if they were taken at
the position of the left and right eye, e.g. at the distance between the human
eyes. Shuji teaches that the system can be used to create binocular or
polyocular images. See paragraphs 0005 and 0007 of the translation. A
binocular image would for example include images 21d and 21b of figure 2,
whereas the polyocular images would include all of images 21a-21e. See
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paragraph 0012, 0013 and 0044 of translated Shuji reference. Thus, given
these disclosures, we agree that the skilled artisan would have recognized
that images 21d and 21b are selected considering the distance between the
human eyes. Further, whether or not Shuji’s system may differ and be more
complex than Appellants’ disclosed system is of no consequence as the
claimed invention does not bear out the difference between the two, e.g. the
claim does not recite use of the use of the calculated parallax angle α.
Accordingly, Appellants’ arguments have not persuaded us that the
Examiner erred in rejecting claim 16.

Claims 17, 21, 24 through 26, and 29
Appellants’ arguments have not persuaded us that the Examiner erred
in finding that Shuji teaches a first and second data processing means.
Claim 17 recites “a first data processing means for generating three
dimensional data derived from the two dimensional data.” Appellants’
Specification discusses the structure for performing this function as a
processor which generates a three dimensional model for the two
dimensional image, see steps S404 and S405 of figure 4, and description on
pages 8 and 9 the Specification. Claim 17 further, recites “a second data
processing means for converting the three dimensional data into the image
data for the right eye and the image data for the left eye.” Appellants’
Specification discusses the structure for performing this function as a
processor which generates the two images using the parallax information,
see Steps 406-407 of figure 4, and description on page 10 the Specification.
Claim 29 recites similar limitations. Thus, the scope of independent claims
17 and 29 includes that the image is processed to create a three dimensional
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model and then the parallax information is used to generate two images, one
for the left and one for the right eye of the user.
In rejecting these claims the Examiner finds that Shuji’s teaching of
generating three dimensional information by giving different parallax
amounts to parts of the image discussed in paragraph 0010 meets the
claimed first processing means. Answer 20. Further, the Examiner finds
that Shuji’s teaching of applying a shift between the left and right eye view
points as discussed in paragraph 0038, meets the claimed second processing
means. Answer 20. We do not find, however, that the evidence supports the
Examiner’s finding. While as discussed above with respect to claim 16 we
find that Shuji teaches generating an image for viewing by the left and right
eye, we do not see that paragraph 0010 teaches generating three dimensional
data given the two dimension data and then from this three dimensional data
generating the images as claimed. Rather, it appears that paragraph 0010 of
Shuji is describing the same process of creating multiple images as described
in paragraph 0038 of Shuji. Thus, Shuji does not teach the first or second
processing means as claimed, and we will not sustain the Examiner’s
anticipation rejection of independent claims 17, 29 or dependent claims 21
and 24 through 26.

Rejection of claims 7 through 13, 22, 27, and 28 under 35 U.S.C.
§ 103(a)
Initially, we note that claims 22, 27 and 28, are dependent upon claim
17. As discussed above we will not sustain the Examiner’s rejection of claim
17. The Examiner has not found that Aoki remedies the deficiencies noted
in the rejection of claim 17. Accordingly, we will not sustain the
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Examiner’s rejection of claims 22, 27, and 28 for the reasons discussed with
respect to claim 17.
Appellants’ arguments on page 19 and 20 of the Brief directed to the
Shuji teaching of calculating parallax based upon on the distance between
human eyes have not persuaded us of error in the Examiner’s rejection of
independent claims 7, 10 and 13. Representative claim 7 recites a parallax
information portion determining parallax of said subject based on a distance
between human eyes. Thus, as discussed above with respect to claim 16 we
concur with the Examiner’s finding that Shuji teaches determining parallax
based upon distance between human eyes. Accordingly, Appellants’
arguments have not persuaded us of error in the Examiner’s rejection.
Appellants argue on pages 11 and 12 of the Reply Brief that the
Examiner’s reasons for combining Shuji with Aoki is improper. Initially, we
note that Appellants did not raise this issue in the Brief. Thus, those
arguments are deemed waived. Appellants have not explained why, nor is it
apparent that these arguments were necessitated by a new point in the
Answer or any other circumstance constituting “good cause” for its belated
presentation. See Ex parte Borden, 93 USPQ2d 1473, 1473-74 (BPAI 2010)
(“informative”3) (absent a showing of good cause, Board not required to
address argument in Reply Brief that could have been presented in the
principal Brief).

3 The “informative” status of this opinion is noted at the following Board
website: http://www.uspto.gov/ip/boards/bpai/decisions/inform/index.jsp.
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Further, Appellants’ statements in support of this argument seem to
admit that applying the teachings of Shuji and Aoki would result in the
claimed invention. Appellants state:
Appellants submit that the applying the teachings of Aoki to the
invention of Shuji would merely involve a specific image to be
stereoscopically displayed. In other words, the combination of Aoki
and Shuji would at most result in obtaining distance information for
all pixels in a face image in order to display a stereoscopic image of
the face image.
To the contrary, claim 7 requires that parallax information be
applied to a cut out of a face image in order to create a three
dimensional image of the original picked up image.

Reply Brief 12. While we do not agree that this is the only way the
references could be combined, the combination proffered by Appellants
nonetheless teaches the claimed feature. Claim 7 does not recite that the
parallax information is applied to only the cut out portion, but rather that the
parallax information is applied to the cut out portion. As the cut out is a
portion of the entire image, applying the distance information to all of the
pixels, which Appellants state would be the result of combining the
references, results in applying the parallax information to the pixels in the
cut out portion.
Accordingly, Appellants’ arguments directed to the independent claim
7 have not convinced us of error in the Examiner’s rejection. Accordingly,
we sustain the Examiner’s rejection of claims 7 through 13.

Rejection claims 15, and 30 under 35 U.S.C. § 103(a)
Appellants’ arguments have persuaded us that the Examiner erred in
rejecting claim 15. Independent claim 15 recites that the parallax
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information is based upon the differences in brightness between parts of the
image. In rejecting this limitation, the Examiner has relied upon Pavlidis’s
teaching of calculating a scale factor for an image. The Examiner equates
using a LASER to determine the distance between portions of an image, by
measuring distance between bright spots created in the image, to determine
the depth or parallax of the image. Answer 13, 24. We concur with the
Examiner’s finding that Pavlidis teaches using a laser and measuring
distance between bright spots to determine distance between parts of an
image. Col. 16, l. 65- col. 16, l. 1. However, we disagree with the
Examiner’s determination that this meets the limitations of claim 15. Claim
15 recites that differences in brightness are used to determine parallax
information - Pavlidis teaches that the distance between bright spots is
measured, not the difference in brightness between elements. Thus, the
Examiner has not demonstrated that the limitations of independent claim 15,
or claim 30 which depends upon claim 15, are taught by the prior art.
Accordingly, we will not sustain the Examiner’s rejection of claims 15 and
30.
Rejection of claims 23, 32, through 35 under 35 U.S.C. § 103(a)
Claims 23 and 35
Initially, we note that claims 23 and 35 are ultimately dependent upon
claim 17. The Examiner’s rejection of these claims relies upon Shuji to
teach the limitations of independent claim 17. Accordingly, we will not
sustain the Examiner’s rejections of claims 23 and 35 for the reasons
discussed with respect to claim 17.
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Claim 32
Appellants’ arguments on page 23 and 24 of the Brief, assert that the
rejection of claim 32 is in error for the reasons discussed with respect to
claim 17. Appellants further argue that although Tao and Shuji may be
combined to create an animation, neither of the references disclose the
conversion of three dimensional data based upon a model into image data for
the right and left eye. Brief 24. We concur with Appellants.
We first observe that claim 32 is dependent upon claim 7, not claim
17, and does not recite a limitation directed to a first and second data
processing means; thus, arguments directed to claim 17 are not directly on
point. However, claim 32, like claim 17, recites that the three dimensional
image creation portion generates three dimensional data based upon a face
geometry model. The Tao reference does discuss using models to generate
three dimensional data. Col. 2, ll. 52-65. However, Tao does not teach
using this data to generate left and right image data. As discussed supra
with respect to clam 17, Shuji does not teach generating images for the left
and right eye given three dimensional data from a model. Accordingly, we
will not sustain the Examiner’s rejection of claim 32.
Claims 33 and 34
Appellants present the same arguments with respect to claim 33 and
34 as discussed above with respect to claim 32. We are similarly persuaded
of error in the Examiner’s rejection. Claims 33 and 34 are dependent upon
independent claims 10 and 13 respectively and recite similar limitations to
those discussed above with respect to claim 32. The Examiner’s rejection of
these claims similarly relies upon Tao to teach the feature of the using
models to generate three dimensional data. The Examiner has not shown
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that the additional teachings of Akoi makes up for the deficiency noted
above in the rejection of claim 32. Accordingly, we will not sustain the
Examiner’s rejection of claims 33 and 34 for the reasons discussed with
respect to claim 32.

CONCLUSION
Appellants have not persuaded us of error in the Examiner’s rejection
of claims 7, 10, 13, and 16. However, Appellants have persuaded us of error
in the Examiner’s rejection of claims 17 through 30, and 32 through 35.

ORDER
The decision of the Examiner to reject claims 7 through 13, 15
through 30, and 32 through 35 is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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